Minutes of the Eleventh Meeting of the Bills Committee to study
the Prevention of Bribery (Miscellaneous Provisions)(No.2) Bill 1995

Meeting with the representatives of AGC and ICAC

Section 8(2) of the Independent Commission Against Corruption Ordinance (ICACO). Appointment of officers

The Administration had been asked to reconsider whether the Governor should make a decision on an appeal made by a member of staff against termination under the provision of the ICACO at the fourth meeting held on 11 December 1995. To follow up this point, Mr Andrew CHENG said that he could identify two possible appeal channels to avoid unfairness which might still arise from the proposed section : (a) decision to be made by the Governor in Council; or (b) decision to be made by an ICAC’s advisory committee. Mr R ALLCOCK responded that there was already administrative procedure to safeguard the interest of the officer since the Advisory Committee on Corruption (ACOC) would advise, as recommended by the ICAC Review Committee, the Commissioner on his decision to terminate the appointment of an officer. There was also legal channel outside section 8(2) for an officer to appeal through judicial review. Mr ALLCOCK stressed that judicial review would be the most appropriate mechanism since the Commissioner’s power to dismiss was not circumscribed by any particular criteria (apart from he being satisfied that the dismissal was in the interest of the Commission). A formal judical appeal would not, therefore, be appropriate.

2. Mr Andrew CHENG did not agree that judicial review, which had already existed since 1974, could offer adequate legal protection for the officers. He opined that an officer being dismissed might not have the time and money to seek judicial review. The main issue was to ensure that the appeal mechanism was an independent one since the right of appeal was considered necessary (as proposed in section 8(2)). The Chairman shared the view. He pointed out that the appeal channels proposed by Mr CHENG would not infringe the principle of confidentiality because members of the Executive Council and the ICAC’s Advisory Committee (who were appointed by the Governor) could have access to confidential information. In addition, they would not go against the basic spirit of section 8(2) which was to ensure a speedy dismissal so as to protect the integrity of ICAC’s staff. Mr Zachary WONG supplemented that it was important to have an independent mechanism to decide on an appeal against termination since the future Chief Executive would be selected by the Selection Committee of the Preparatory Committee for the Hong Kong Special Administrative Region and might have political affiliation which would prejudice his impartial and independent role in the issue.

3. Mr ALLCOCK explained that it was a matter of the role and responsibility of the various parties under discussion. The Governor, being the head of the civil service responsible to the community, should have the ultimate power to dismiss an officer. It would not be a proper chain of accountability if such power was given to another body which was not responsible for running the ICAC. The Chairman argued that the Governor could delegate his power to dismiss to another body whilst he was still bearing the ultimate responsibility. In this regard, Mr Andrew CHENG indicated that if the Administration did not accept his suggestion, he might consider enlarging the functions of ICAC’s Advisory Committee, by way of legal procedure, such that it could take additional role in making decision on appeal. In response to Members’ views, Mr ALLCOCK undertook to consider two possible approaches : (a) Advisory Committee would be given executive power to make decision on appeal; or (b) the Governor in Council would make decision on appeal whilst the Advisory Committee remained as an advisory body.

Adm

Committee Stage Amendments to Clauses 15, 16, 17 of Bill

4. Members noted the Committee Stage Amendments to Clauses 15, 16, 17 of Bill from the AGC for the purpose of producing an authentic Chinese text of the ICAC Ordinance (issued vide LegCo Paper No. HB 450/95-96). Senior Assistant Legal Adviser (SALA) reported that the CSAs were consistent with the practice of the Chinese authentication and their legal meaning was the same as that of the English text of the Ordinance. The Chairman therefore suggested and Members agreed to accept these amendments.

Continual Deliberations of the Bill

5. The Chairman then led the meeting to deliberate Recommendations 20, 19 and 37 of the Report of the ICAC Review Committee in relation to the ICACO.

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Recommendations 20 and 19

(section 10A. Procedure after arrest)

6. The Chairman drew Members’ attention to para. 8.17 and para. 8.18 of the ICAC Review Committee’s Report. It was recommended that ICAC should not keep a suspect on bail longer than necessary. The Operations Review Committee (ORC) should receive reports of all cases where suspects had been put on ICAC bail for six months or more, so that it might seek an explanation from ICAC where necessary. Amendment to section 10A(3)(a) was to make it clear that a person who had accepted bail might refuse it thereafter and had his deposit returned to him.

7. In response to the Chairman’s enquiry regarding the new section 10A(3)(a), Mr LI Chak-ming confirmed that it was to reflect existing practice. Mr J E BUCKLE supplemented that the wording of the existing section 10A(3)(a) could be interpreted so widely that once a suspect had deposited a sum of money, he would have to attend the office of the Commission as many times as the ICAC senior officers so instructed. The new section was to specify clearly the suspect’s choice to refuse bail.

8. Mr Andrew CHENG referred to the new section 10A(3)(a) and asked what was the difference after the amendment. Mr J D SCOTT responded that intention of the amendment was that "at such other times thereafter" did not mean only one time (as might be implied by "at such other time" in the original drafting). The person having so attended might further attend as specified by the ICAC officers. Mr BUCKLE explained that renewal of bail at each attendance had been the present practice. ICAC acknowledged a person’s right to refuse bail. If he refused, ICAC had to make a decision either to prosecute or to release such a person. The proposed drafting could therefore more accurately reflect the present practice. SALA further advised that when the person so attended for the second time as specified by an officer, he could invoke section 10A(3A) and indicate his refusal to attend at any further time to a Senior Commission Against Corruption Officer. In this regard, Messrs ALLCOCK and C J KERSHAW clarified that only an officer of the rank of Senior Commission Against Corruption Officer or above could renew bail under section 10A(2). Such a person would therefore be released automatically in case of absence of such officer.

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9. In response to the Chairman’s enquiry, Mr BUCKLE confirmed that it had already been the practice of the ORC to review all bail lasting over six months and all investigations lasting over twelve months, as a result of the ICAC Review Committee’s Recommendation since July 1995. The Chairman further queried whether there would be a loophole if a suspect refused bail at his second attendance, whereas sufficient evidence had not been collected to lay a charge against him at that stage so that ICAC might be forced to release him. Mr BUCKLE explained that ICAC could trigger section 17(A) of Prevention of Bribery Ordinance (POBO) to seize his travel document. However, the Chairman pointed out that the problem would still apply to cases other than POBO offences. Mr BUCKLE advised that ICAC had the power to seize travel documents initially for a period of six months on suspicion of corruption offences prior to charges. In cases when section 17(A) could not be invoked, ICAC would have to charge or attempt to charge as soon as possible. In this regard, the Chairman remarked that he was still concerned to what extent a person’s right to refuse bail would affect ICAC’s decision to arrest. He would follow up issues relating to ICAC’s operation at the LegCo Security Panel.

Chairman

Recommendation 37

(Section 13. Power of the Commissioner)

10. The Chairman queried the logic for providing a mandatory power for the Commissioner of ICAC to have access to all records, books and documents held by public bodies to discharge his corruption prevention duties given the fact that he had no right to force these public bodies to accept ICAC’s recommended corruption prevention procedures. In response, Mr ALLCOCK drew Members’ attention to para. 13.7 of the ICAC Review Committee’s Report which set out the grounds for such powers. He further commented that ICAC would not be able to advise on the practices and procedures of these public bodies if no information was available. Mr BUCKLE added that some of these public bodies were very cautious in releasing information in the light of data protection. These specific powers could overcome their difficulties by imposing a duty on them to produce such information. Mr ALLCOCK explained that a court order was sometimes required in order for the banks (which were barred by rules of confidentiality) to hand over information which they were willing to offer. Mr Andrew CHENG opined that the three reasons given in para. 13.7 of the Report were convincing in justifying such powers in view of the fact that these public bodies would affect public interest to a considerable extent.

11. The Chairman was yet to be convinced and remarked that such powers would only be justified if they were to be used for investigation purposes into the procedure or ICAC could order a mandatory review of the procedures. Mr BUCKLE held the view that the driving force for corruption prevention work was based on advice and education. He wondered whether it would be acceptable to force these public bodies to accept ICAC’s recommendation since free enterprise had been the spirit in Hong Kong. This kind of compulsion suggested by the Chairman was therefore considered not necessary and these powers to require production of information would be sufficient.

12. As regards data protection legislation, the Chairman asked whether a secrecy provision could be added such that information collected under section 13 could not be used for other sections. For example, such information could not be passed to the Operations Department for investigation. In this connection, Mr Zachary WONG opined that public interest would be adversely affected if ICAC detected irregularities in these public bodies and yet could not investigate. Mr BUCKLE shared the view and remarked that it would not be acceptable to ICAC. However, the Chairman worried that such powers to require production of information could be used for fishing purposes and would nullify the objectives of other data protection legislation. He suggested to establish a mechanism by which ICAC had to prove to the court that irregularity was detected accidentally. Mr ALLCOCK acknowledged the Chairman’s concern and suggested re-drafting the section. He undertook to explore the possibility to circumscribe the power so that ICAC Commissioner could have access to documents relating to the procedures of the public bodies.

Adm

Date of next meeting

13. The next meeting would be held on Tuesday, 5 March 1996 at 10:45 a.m. to discuss issues related to other sections of the POBO and ICACO. The Clerk was asked to remind Members to bring along the relevant paper to the meeting.

Clerk

14. There being no other business, the meeting ended at 12:25 p.m..

LegCo Secretariat
18 April 1996